Division 2Staff and consultants

An Act to establish Defence Housing Australia ## Part I—Preliminary #### 1 Short title This Act may be cited as the Defence Housing Australia Act 1987. #### 2 Commencement This Act shall come into operation on a day to be fixed by Proclamation. #### 3 Interpretation (1) In this Act, unless the contrary intention appears: > accredited representative of a registered charity means a person who performs acts at the request or direction of the Defence Force as an accredited representative of the registered charity (where the accreditation is by the Defence Force). > appoint includes re‑appoint. > appointed member means the Chairperson or a member referred to in paragraph 12(1)(b), (c), (d) or (f). > Board means the Board of Directors of DHA established by section 11A. > Chairperson means the Chairperson of the Board. > designated position in the Department means a position in the Department that: (a) is designated, in writing, by the Minister for the purposes of section 60; and (b) is occupied by an SES employee or acting SES employee. > DHA means Defence Housing Australia. > DHA Advisory Committee means the Defence Housing Australia Advisory Committee established by section 27. > Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. > Finance Secretary means the Secretary of the Department administered by the Finance Minister. > government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country. > government body of a foreign country means: (a) the government of the foreign country or of part of the foreign country; or (b) an authority of the government of the foreign country; or (c) an authority of the government of part of the foreign country; or (d) a local government body or regional government body of the foreign country; or (e) a public enterprise of the foreign country. > house includes: (a) any building or part of a building that is used or intended to be used, in whole or in substantial part, for residential accommodation, whether consisting of: (i) a single unit of accommodation; (ii) 2 or more attached units of accommodation; or (iii) multi‑storey units of accommodation; and (b) outbuildings, fences, walls, permanent provision for lighting, for heating, for water supply, for drainage and for sewerage, and other appurtenances of a house (including a building or part of a building referred to in paragraph (a)). > joint venture means an undertaking carried on by 2 or more persons in common otherwise than as partners. > Managing Director means the Managing Director of DHA. > member means a member of the Board, and includes the Chairperson and Managing Director. > military organisation of a foreign country means the armed forces of the government of the foreign country. > registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act. > securities includes stocks, debentures, debenture stocks, notes, bonds, promissory notes, bills of exchange and similar instruments or documents. > share means a share in the share capital of a corporation, and includes stock. (2) The question whether a company is a subsidiary of DHA shall be determined in the same manner as the question whether a corporation is a subsidiary of another corporation is determined for the purposes of the Corporations Act 2001. (3) A reference in this Act to dealing with securities includes a reference to: (a) creating, executing, entering into, drawing, making, accepting, indorsing, issuing, discounting, selling, purchasing and reselling securities; (b) creating, selling, purchasing and reselling rights and options in relation to securities; and (c) entering into agreements and other arrangements in relation to securities. ## Part II—Establishment, functions and powers of DHA #### 4 Defence Housing Australia The body known immediately before the commencement of this section as the Defence Housing Authority is continued in existence with the new name, Defence Housing Australia. #### 5 Main function (1) The main function of DHA is to provide adequate and suitable housing for, and housing‑related services to: (a) members of the Defence Force and their families; and (b) officers and employees of the Department and their families; and (c) persons who provide goods or services to the Defence Force, and their families; and (d) persons who provide goods or services to the Department, and their families; and (e) persons for whom the provision of such housing or services would facilitate engagement in activities with or for the Defence Force, and their families; and (f) members of a military organisation of a foreign country and their families; and (g) officials and employees of a government body of a foreign country and their families; and (h) contractors engaged by: (i) a military organisation of a foreign country; or (ii) a government body of a foreign country; or (iii) a contractor to which this paragraph applies (other than because of this subparagraph); and their families; and (i) accredited representatives of registered charities and their families; and (j) persons in a class of persons covered by a determination under subsection (3) and their families; in order to meet the operational needs of the Defence Force and the requirements of the Department. (2) DHA shall provide such housing and housing‑related services as the Minister, by notice in writing given to DHA, directs is necessary for DHA to provide in order to meet the operational needs of the Defence Force and the requirements of the Department. (3) The Minister may, by legislative instrument, determine classes of persons for the purposes of paragraph (1)(j). #### 6 Additional functions (1) The first additional function of DHA is to provide adequate and suitable housing for, and housing‑related services to: (a) officials of a non‑corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) other than the Department, and their families; and (b) persons contracted to provide goods or services to a non‑corporate Commonwealth entity (within the meaning of that Act) other than the Department, and their families; in order to meet the requirements of that entity. (2) The second additional function of DHA is to provide services ancillary to the services mentioned in subsection (1) and in subsection 5(1), to persons mentioned in those subsections, in order to meet the requirements of a non‑corporate Commonwealth entity (within the meaning of that Act). (3) DHA may perform a function mentioned in subsection (1) or (2) only to the extent mentioned in a determination under subsection (4). (4) The Minister may determine, in writing, the extent to which DHA may perform the function in relation to any of the following: (a) the persons to whom services can be provided; (b) the kinds of services that can be provided; (c) any other matter. (5) A determination made under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. > Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination: see regulations made for the purposes of paragraph 54(2)(b) of that Act. (6) DHA’s gross revenue from the performance of all of the following functions for a financial year must not exceed the amount mentioned in subsection (7): (a) the function mentioned in subsection (1); (b) the function mentioned in subsection (2), to the extent that it relates to the function mentioned in subsection (1). (7) The amount is DHA’s total gross revenue for the financial year multiplied by: (a) if a percentage under 25% is prescribed by the regulations for the purposes of this subsection—that percentage; or (b) otherwise—25%. (8) For the purposes of subsections (6) and (7), DHA’s gross revenue and total gross revenue for the financial year are to be determined from its audited annual accounts. #### 7 Powers (1) DHA has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may: (a) purchase and otherwise acquire, and sell and otherwise dispose of: (i) land and any interest in land; and (ii) houses; (b) develop land; (c) build, demolish, alter, renovate, maintain, repair and improve houses; (d) convert buildings and other structures that are not houses into houses; (e) rent out, and generally manage and control: (i) land and houses acquired by it; and (ii) land and houses that are: (A) owned or held under lease by the Commonwealth or a State or Territory; and (B) made available to it; (f) determine and collect rents, fees and charges in relation to land and houses rented out by it; (g) evict tenants and otherwise recover possession of land and houses referred to in paragraph (e); (h) provide and improve amenities, facilities and services for persons living in houses rented out by it; (j) purchase and take on hire, and dispose of, plant, machinery, equipment and other goods; (k) hire out plant, machinery, equipment and other goods not immediately required by it; (m) make charges for work done, and services rendered, by it; (n) provide transport, accommodation, amenities, facilities and services for members of the staff of DHA and their families; (p) enter into contracts; (q) appoint agents and attorneys and act as an agent for other persons; (r) engage consultants; (s) form, and participate in the formation of, companies; (t) enter into partnerships; (u) participate in joint ventures; (w) accept gifts, grants, bequests and devises made to it and act as trustee of money and other property vested in it on trust; and (x) do anything incidental to any of its powers. (2) DHA shall not, except with the written approval of the Minister, enter into a contract involving the payment by it of an amount exceeding $6,000,000, or a greater amount specified in a determination under subsection (3). (3) The Minister may determine, in writing, an amount for the purposes of subsection (2). (4) A determination made under subsection (3) is not a legislative instrument. #### 11 DHA is body corporate etc. (1) DHA: (a) is a body corporate; and (b) is to have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued. > Note: The Public Governance, Performance and Accountability Act 2013 applies to DHA. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (2) The seal of DHA shall be kept in such custody as the Board directs and shall not be used except as authorised by the Board. (3) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the seal of DHA appearing on a document and shall presume that it was duly affixed. ## Part III—The Board #### 11A Establishment of the Board A Board of Directors of DHA is established by this section. #### 11B Functions of the Board (1) The functions of the Board are to ensure the proper and efficient performance of the functions of DHA and, subject to the provisions mentioned in subsection (2), to determine the policy of DHA with respect to any matter. (2) The provisions are as follows: (a) subsection 5(2); (b) section 31; (c) section 60; (d) section 63A; (e) section 66A. #### 12 Membership of the Board (1) The Board consists of the following members: (a) the Chairperson; (b) a current or former APS employee or Agency Head (within the meaning of the Public Service Act 1999), with a background in Defence, nominated by the Secretary of the Department; (c) a current or former member of the Defence Force nominated by the Chief of the Defence Force; (d) a person nominated by the Finance Secretary; (e) the Managing Director; (f) 4 commercial members. (2) The performance of the functions, and the exercise of the powers, of DHA are not affected by reason only of vacancies in the membership of the Board. #### 14 Appointment of members (1) The Chairperson and the other appointed members, other than the appointed member referred to in paragraph 12(1)(d), are to be appointed by the Minister by written instrument. (1A) The appointed member referred to in paragraph 12(1)(d) is to be appointed by the Finance Minister by written instrument. (2) A person is not eligible for appointment as a member referred to in paragraph 12(1)(f) unless the person appears to the Minister to be suitably qualified for appointment by virtue of expertise in one or more of the following fields: (a) housing operations; (b) property development or management; (c) business management; (d) real estate management; (e) finance; (f) building or construction management; (g) social planning. (4) The appointment of a person as an appointed member is not invalid because of a defect or irregularity in connection with the person’s appointment. #### 15 Term of office of appointed members (1) An appointed member: (a) shall be appointed with effect from the day specified in the instrument of appointment; and (b) holds office, subject to this Act, for such term (not exceeding 3 years) as is specified in the instrument of appointment, but is eligible for re‑appointment. (2) If the member ceases to hold office before the end of the term of appointment, another person may, in accordance with this Act, be appointed in the member’s place until the end of the term. #### 16 Appointed members hold office on part time basis Appointed members hold office on a part time basis. #### 17 Remuneration and allowances of appointed members (1) An appointed member shall be paid such remuneration as is determined by the Remuneration Tribunal. (2) An appointed member shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 18 Leave of absence (1) The Minister may grant leave of absence to the Chairperson on such terms and conditions as the Minister considers appropriate. (2) The Chairperson may grant leave of absence to another member on such terms and conditions as the Chairperson considers appropriate. #### 19 Resignation of appointed members (1) An appointed member may resign his or her office by writing signed by the member and delivered to the Minister. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day. #### 20 Disclosure of interests For the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section, a member is not taken to have a material personal interest in a matter only because the member is the tenant of a house rented from DHA. #### 21 Termination of appointment (1) The Minister may terminate the appointment of an appointed member for misbehaviour or physical or mental incapacity. (2) If: (a) an appointed member becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (c) the Chairperson is absent, except with the leave of the Minister, from 3 consecutive meetings of the Board; or (d) an appointed member (other than the Chairperson) is absent, except with the leave of the Chairperson, from 3 consecutive meetings of the Board; > Note: The appointment of an appointed member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials). the Minister shall terminate the appointment of the appointed member. #### 22 Terms and conditions of appointment not provided for by Act An appointed member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined, in writing, by the Minister. #### 23 Acting appointments (1) The Minister may appoint an appointed member referred to in paragraph 12(1)(f) to act as Chairperson: (a) during a vacancy in the office of Chairperson (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chairperson is absent from Australia or is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2) The Minister may appoint a person to act as an appointed member referred to in paragraph 12(1)(b), (c) or (f): (a) during a vacancy in the office of such a member (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when such a member is acting as Chairperson, is absent from Australia or is, for any reason, unable to attend meetings of the Board. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2A) The Finance Minister may appoint a person nominated by the Finance Secretary to act as the appointed member referred to in paragraph 12(1)(d) during a vacancy in the office of such a member (whether or not an appointment has previously been made to the office). > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 24 Meetings (1) The Board shall hold such meetings as are necessary for the efficient performance of its functions. (2) Subject to subsections (3) and (4), meetings of the Board shall be held at such times and places as the Board from time to time determines. (3) The Chairperson: (a) may, at any time, convene a meeting of the Board; and (b) shall, on receipt of a written request signed by not less than 3 other members, convene a meeting of the Board. (4) The Minister may, at any time, convene a meeting of the Board. (5) The Chairperson shall preside at all meetings of the Board at which the Chairperson is present. (6) If the Chairperson is not present at a meeting of the Board, the members present shall appoint one of their number to preside at the meeting. (7) At a meeting of the Board: (a) 5 members constitute a quorum; (b) a question shall be decided by a majority of the votes of the members present and voting; and (c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote. (8) The Board shall keep minutes of its proceedings. (9) The Board may invite a person to attend a meeting for the purpose of advising or informing it on any matter. #### 25 Resolutions without meetings (1) Where all of the members of the Board sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, a resolution in those terms shall be deemed to have been passed at a duly convened meeting of the Board on the day on which the document is signed, or, if the members do not sign it on the same day, on the day on which the last member signs the document. (2) Two or more separate but identical documents, each of which is signed by one or more members, shall be deemed, for the purposes of subsection (1), to constitute the one document. #### 26 Committees (1) The Board may establish committees to assist it in the performance of its functions and the exercise of its powers. (2) A committee may be constituted wholly by members of the Board or partly by members of the Board and partly by other persons. (3) The Board may fix the number of members of a committee required to constitute a quorum at a meeting of the committee. (4) A member of a committee who is not also a member of the Board shall be paid such remuneration and allowances (if any) as the Minister determines, in writing. (5) The office of member of a committee is not a public office within the meaning of the Remuneration Tribunal Act 1973. (6) Rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 dealing with disclosing interests in a matter that is about to be considered by a body (other than the members of an accountable authority) apply to members of a committee. (7) For the purposes of subsection (6), a member of a committee does not have a material personal interest in a matter only because the member is the tenant of a house rented from DHA. ## Part IIIA—DHA Advisory Committee #### 27 DHA Advisory Committee (1) The Defence Housing Australia Advisory Committee is established by this section. (2) The Defence Housing Australia Advisory Committee consists of the following: (a) the Chair of the Advisory Committee, who is to be the member mentioned in paragraph 12(1)(b) or the member mentioned in paragraph 12(1)(c), as nominated by DHA; (b) either: (i) unless subparagraph (ii) applies—the National Convenor of Defence Families Australia; or (ii) if the regulations specify a similar office—the person occupying that office; (c) up to 3 persons appointed by the Chief of the Defence Force; (f) a person appointed by DHA. (3) The persons mentioned in paragraphs (2)(c), (d), (e) and (f) are to be appointed in writing. They hold office for the period specified in the instrument of appointment. The period must not exceed 3 years. > Note: The persons are eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901. (4) The persons mentioned in subsection (2) hold office on a part‑time basis. #### 28 Function of the DHA Advisory Committee The DHA Advisory Committee’s function is, either on its own initiative or at the request of DHA, to give advice and information to DHA about the performance of DHA’s functions. #### 29 Remuneration (1) The person mentioned in paragraph 27(2)(b) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the person is to be paid the remuneration that is prescribed. (2) The person is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. ## Part IV—Operation of DHA #### 31 Directions to DHA (1) Except as provided in this section or as otherwise expressly provided by this Act, DHA is not subject to direction by or on behalf of the Commonwealth Government. (2) Where the Minister is satisfied that it is desirable in the public interest to do so, the Minister may, by notice in writing to DHA, give directions to DHA with respect to the performance of its functions and the exercise of its powers. (3) DHA shall comply with any direction under subsection (2). (4) Where the Minister gives a direction to DHA under subsection (2), DHA shall include particulars of the direction in its annual report. #### 32 Reimbursement of cost of complying with directions (1) Where DHA satisfies the Minister that it has, during any period, suffered financial detriment as a result of complying with a direction under subsection 31(2) (other than a direction the notice of which stated that the direction was in accordance with the general policy of the Commonwealth Government), DHA is entitled to be reimbursed by the Commonwealth the amount that the Minister determines, in writing, to be the amount of the financial detriment suffered by DHA during the period. (2) The reference in subsection (1) to DHA suffering financial detriment as a result of complying with a direction includes a reference to DHA: (a) suffering a loss in complying with the direction; (b) incurring costs, in complying with the direction, greater than the costs that DHA would otherwise have incurred; or (c) forgoing revenue, in complying with the direction, that DHA would otherwise have received. ## Part V—Finance #### 36 Borrowings from Commonwealth The Finance Minister may, on behalf of the Commonwealth and out of money appropriated by the Parliament for the purpose, lend money to DHA on such terms and conditions as the Finance Minister, in writing, determines. #### 37 Borrowings otherwise than from Commonwealth (1) DHA may, with the written approval of the Finance Minister: (a) borrow money otherwise than from the Commonwealth; or (b) raise money otherwise than by borrowing; on terms and conditions that are specified in, or consistent with, the approval. (2) Without limiting the generality of subsection (1), DHA may, under that subsection, borrow money, or raise money otherwise than by borrowing, by dealing with securities. (3) A borrowing of money, or a raising of money otherwise than by borrowing, under subsection (1) may be made, in whole or in part, in a currency other than Australian currency. (4) An approval may be given under subsection (1) in relation to a particular transaction or transactions in a class of transactions. (5) For the purposes of this section: (a) the issue by DHA of an instrument acknowledging a debt in consideration of: (i) the payment or deposit of money; or (ii) the provision of credit; otherwise than in relation to a transaction that is in the ordinary course of the day to day operations of DHA, shall be deemed to be raising by DHA, otherwise than by borrowing, of an amount of money equal to the amount of the money paid or deposited or the value of the credit provided, as the case may be; and (b) the obtaining of credit by DHA otherwise than in relation to a transaction that is in the ordinary course of the day to day operations of DHA shall be deemed to be a raising by DHA, otherwise than by borrowing, of an amount of money equal to the value of the credit so obtained. #### 38 Guarantee of borrowings by DHA (1) The Finance Minister may, on behalf of the Commonwealth, enter into a contract: (a) guaranteeing the repayment by DHA of money borrowed under paragraph 37(1)(a) and the payment by DHA of interest (including any interest on that interest) on money so borrowed; or (b) guaranteeing the payment by DHA of such amounts (which may be interest) that DHA is liable to pay with respect to money raised under paragraph 37(1)(b) as are specified in the contract. (2) The Finance Minister may, in writing, determine: (a) that the repayment by DHA of money borrowed under paragraph 37(1)(a), and the payment by DHA of interest (including any interest on that interest) on money so borrowed, are guaranteed by the Commonwealth; or (b) that the payment by DHA of such money (which may be interest) that DHA is liable to pay with respect to money raised under paragraph 37(1)(b) as is specified in the determination is guaranteed by the Commonwealth; and, where the Finance Minister makes such a determination, the repayment of that money and the payment of that interest are, or the payment of that money is, by force of this subsection, guaranteed by the Commonwealth. (3) A contract may be entered into under subsection (1), and a determination may be made under subsection (2), in relation to a particular transaction or a class of transactions. (4) A contract entered into under subsection (1) may include either or both of the following provisions: (a) a provision agreeing that proceedings under the contract may be taken in the courts, or a specified court, of a country other than Australia; (b) a provision waiving the immunity of the Commonwealth from suit in the courts, or a specified court, of a country other than Australia in relation to any proceedings that may be taken under the contract. #### 39 DHA may give security DHA may give security over the whole or any part of its land or other assets for: (a) the repayment of money borrowed under section 36 or paragraph 37(1)(a) and the payment of interest (including any interest on that interest) on money so borrowed; (b) the payment of amounts (which may be interest) that it is liable to pay with respect to money raised under paragraph 37(1)(b); or (c) the payment to the Commonwealth of amounts equal to any amounts that the Commonwealth may become liable to pay under a contract entered into under subsection 38(1) or as a result of a determination made under subsection 38(2). #### 40 Borrowings not otherwise permitted DHA shall not borrow money, or raise money otherwise than by borrowing, except in accordance with sections 36 and 37. #### 41 Guarantee of borrowings and raisings by wholly owned subsidiaries (1) Where: (a) a body corporate that is a wholly owned subsidiary of DHA: (i) borrows money otherwise than from the Commonwealth; or (ii) raises money otherwise than by borrowing; and (b) the money has been, or is to be, expended in connection with the objects of the body corporate; then, whether the money is borrowed or raised by dealing in securities or otherwise, and whether or not the money is borrowed or raised, in whole or in part, in a currency other than Australian currency, this section applies to the borrowing or raising. (2) Subject to subsection (4), the Finance Minister may, on behalf of the Commonwealth, enter into a contract in relation to a borrowing or raising by a body corporate, being a borrowing or raising to which this section applies: (a) guaranteeing the repayment by the body corporate of the money borrowed and the payment by the body corporate of interest (including any interest on that interest) on the money borrowed; or (b) guaranteeing the payment by the body corporate of such amounts (which may be interest) that the body corporate is liable to pay with respect to the money raised as are specified in the contract. (3) Subject to subsection (4) the Finance Minister may, in writing, determine in relation to a borrowing or raising by a body corporate, being a borrowing or raising to which this section applies: (a) that the repayment by the body corporate of the money borrowed, and the payment by the body corporate of interest (including any interest on that interest) on the money so borrowed, are guaranteed by the Commonwealth; or (b) that the payment by the body corporate of such money (which may be interest) that the body corporate is liable to pay with respect to the money raised as is specified in the determination is guaranteed by the Commonwealth; and, where the Finance Minister makes such a determination, the repayment of that money and the payment of that interest are, or the payment of that money is, by force of this subsection, guaranteed by the Commonwealth. (4) The Finance Minister shall not enter into a contract under subsection (2), or make a determination under subsection (3), in relation to a borrowing or raising by a body corporate unless: (a) the Finance Minister is satisfied that the terms and conditions of the borrowing or raising are reasonable; (b) if the borrowing or raising consists of, or includes, the issue of instruments—the issue of those instruments, and the form of those instruments, have been approved, in writing, by the Finance Minister; (c) the Finance Minister is satisfied that appropriate security has been, or is to be, given to the Commonwealth; (d) the Finance Minister is satisfied that appropriate undertakings have been given by the body corporate that the property over which security has been, or is to be, given in accordance with paragraph (c): (i) will be insured and kept insured to its full insurable value against all risks against which it is customary to insure; (ii) will not be sold or made the subject of a mortgage or charge having priority over the security; and (iii) will not be taken out of Australia for a destination outside Australia except after the giving of such security as the Finance Minister approves in writing; (e) the Finance Minister is satisfied that appropriate undertakings have been given by the body corporate that, while the contract or determination remains in force: (i) persons appointed or engaged under the Public Service Act 1999 and authorised in writing by the Minister will, at all reasonable times, have full and free access to the financial accounts of the body corporate; and (ii) the body corporate will do everything in its power to ensure that those persons so authorised will, at all reasonable times, have full and free access to the financial accounts of any body, whether corporate or unincorporate, in which the body corporate has, whether directly or indirectly, a controlling interest; (f) the Finance Minister is satisfied that appropriate undertakings have been given by the body corporate that any legal costs incurred by the Commonwealth in connection with the contract or determination will be met by the body corporate; and (g) such other conditions as the Finance Minister considers necessary are fulfilled. (5) A contract may be entered into under subsection (2), and a determination may be made under subsection (3), in relation to a particular transaction or a class of transactions. (6) A contract entered into under subsection (2) may include either or both of the following provisions: (a) a provision agreeing that proceedings under the contract may be taken in the courts, or a specified court, of a country other than Australia; (b) a provision waiving the immunity of the Commonwealth from suit in the courts, or a specified court, of a country other than Australia in relation to any proceedings that may be taken under the contract. (7) Where the Finance Minister enters into a contract under subsection (2), or makes a determination under subsection (3), in relation to a borrowing or raising, the Finance Minister shall cause to be laid before each House of the Parliament, within 15 sitting days of that House after the contract is entered into or the determination made, a notice specifying the amount and term of the borrowing or raising and such other information relating to the borrowing or raising, and the contract or determination, as the Finance Minister considers appropriate. (8) For the purposes of this section: (a) the issue by a body corporate of an instrument acknowledging a debt in consideration of the payment or deposit of money or of the provision of credit; or (b) the obtaining of credit by a body corporate; shall, to the extent of the amount of that money or of that credit, as the case may be, be deemed to be a borrowing by the body corporate. (9) For the purposes of subsection (1), a body corporate is a wholly owned subsidiary of DHA if the body corporate is a subsidiary of DHA and none of the members of the body corporate is a person other than: (a) DHA; (b) a nominee of DHA; (c) a subsidiary of DHA, being a subsidiary none of the members of which is a person other than DHA or a nominee of DHA; or (d) a nominee of a subsidiary referred to in paragraph (c). ## Part VI—Managing Director, staff and consultants ### Division 1—Managing Director #### 45 Managing Director There shall be a Managing Director of DHA. #### 46 Duties (1) The Managing Director shall conduct the affairs of DHA. (2) The Managing Director shall act in accordance with any policies determined by, and any directions given by, the Board. (3) All acts and things done in the name of, or on behalf of, DHA by the Managing Director shall be deemed to have been done by DHA. #### 47 Appointment (1) The Managing Director shall be appointed by the Board. (3) The appointment of a person as Managing Director is not invalid because of a defect or irregularity in connection with the person’s appointment. #### 48 Term of office etc. The Managing Director: (a) shall be appointed with effect from the day specified in the instrument of appointment; and (b) holds office during the Board’s pleasure. #### 49 Managing Director not to engage in other paid employment The Managing Director shall not engage in paid employment outside the duties of the office except with the approval of the Board. #### 50 Remuneration and allowances (1) The Managing Director shall be paid such remuneration as is determined by the Remuneration Tribunal. (2) The Managing Director shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 51 Leave of absence (1) The Managing Director has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Chairperson may grant the Managing Director leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Board determines. #### 52 Resignation The Managing Director may resign his or her office by writing signed by the Managing Director and delivered to the Chairperson. #### 54 Acting Managing Director (1) The Board may appoint a person (other than a member) to act as Managing Director: (a) during a vacancy in the office of Managing Director (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Managing Director is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (6) A person appointed to act as Managing Director may resign the appointment by writing signed by the person and delivered to the Chairperson. #### 56 Terms and conditions of appointment not provided for by Act The Managing Director holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Board. ### Division 2—Staff and consultants #### 57 Staff (1) The staff of DHA shall be: (a) persons engaged under the Public Service Act 1999; and (b) members of the Defence Force whose services are made available to DHA under an arrangement between the Chief of the Defence Force and DHA. (2) For the purposes of the Public Service Act 1999: (a) the Managing Director and the APS employees assisting the Managing Director together constitute a Statutory Agency; and (b) the Managing Director is the Head of that Statutory Agency. #### 58 Consultants (1) DHA may engage persons having suitable qualifications and experience as consultants to DHA. (2) The terms and conditions of engagement shall be determined by DHA. ## Part VII—Miscellaneous #### 59 Rents (1) The rent payable for any house let or leased by DHA shall be such as the Board, subject to this section and subsection 31(3), determines from time to time, having regard to the prevailing market rents for houses. (2) The Board must: (a) determine, in writing, the principles in accordance with which it proposes to determine rents; and (b) inform the Minister, by notice in writing, of the principles that it has determined. (3) Where the Board varies the principles in accordance with which it determines rents, the Board shall inform the Minister, by notice in writing, of the variation. #### 60 Transfer of assets to DHA (1) The Minister, or the occupant of a designated position in the Department, may: (a) direct, in writing, that land that is owned by the Commonwealth is to be transferred to DHA; (b) make available to DHA land and houses that are owned or held under lease by the Commonwealth or a State or Territory; and (c) may cause any plant, machinery, equipment or other goods that are owned by the Commonwealth to be transferred to DHA. (2) Where the Minister, or the occupant of a designated position in the Department, directs under subsection (1) that land owned by the Commonwealth is to be transferred to DHA, the land (including all rights, title and interests in the land), together with any buildings or structures on the land, is vested in DHA without any conveyance, transfer or assignment. (3) Where: (a) land vests in DHA under this section; and (b) a certificate that: (i) is signed by an officer of the Attorney‑General’s Department authorised in writing by the Secretary of that Department to give such certificates; (ii) identifies the land, whether by reference to a map or otherwise; and (iii) states that the land is vested in DHA under this section; is lodged with the Registrar‑General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated; the officer with whom the certificate is lodged may: (c) register the vesting in like manner to the manner in which dealings in land are registered; and (d) may deal with, and give effect to, the certificate; as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) to DHA that had been duly executed under the laws in force in the State or Territory. (4) Where, under subsection (1), the Minister, or the occupant of a designated position in the Department, makes land or houses available to DHA, the Minister, or the occupant of a designated position in the Department, may: (a) give directions, in writing, to DHA with respect to its management and control of the land or houses; and (b) determine, in writing, the period for which the land is, or the houses are, made available to DHA. #### 61 Application of Lands Acquisition Act The Lands Acquisition Act 1989 does not apply in relation to DHA. #### 62 Duties of DHA Nothing in this Act shall be taken to impose on DHA a duty that is enforceable by proceedings in a court. #### 62A Liability to Commonwealth taxation (1) DHA is subject to taxation under the laws of the Commonwealth. (2) DHA is not a public authority for the purposes of section 50‑25 of the Income Tax Assessment Act 1997. #### 63 Exemption from State and Territory taxation (1) Subject to subsection (4), DHA is not subject to taxation under the laws of a State or Territory. (2) The Minister may, by notice in writing published in the Gazette, declare that stamp duty, or a similar tax specified in the notice, is not payable by DHA or any other person under a law of a State or Territory in respect of: (a) a security dealt with by DHA; (b) the issue, redemption, transfer, sale, purchase, resale, acquisition or discounting of a security by DHA or any other person (other than a transaction done without consideration or for an inadequate consideration); (c) any other transaction done for the purposes of a borrowing, or a raising of money otherwise than by borrowing, by DHA; or (d) any other document executed by or on behalf of DHA for the purposes of a borrowing, or a raising of money otherwise than by borrowing, by DHA. (3) A declaration may be made under subsection (2) in relation to: (a) a particular security, transaction or document; or (b) securities, transactions or documents in a class of securities, transactions or documents, as the case may be. (4) Subject to subsection (2), the regulations may provide that subsection (1) does not apply in relation to: (a) a specified law of a State or Territory; or (b) laws in a specified class of laws of a State or Territory. (5) Nothing in subsections (1), (3) or (4) shall be read as implying that a company in which DHA has an interest, or that is a partner of DHA or a participant in a joint venture agreement with DHA, is not liable to pay taxes under any law of the Commonwealth or of a State or Territory. #### 63A DHA must make tax‑equivalent payments to the Commonwealth (1) The Minister may inform DHA in writing of arrangements that are to apply to DHA in relation to a tax‑equivalent payment to be made by DHA to the Commonwealth in respect of each financial year. (2) To avoid doubt, an instrument under subsection (1) may relate to more than 1 financial year. (3) The amount of the payment to be made under the arrangements is to be worked out having regard to the purpose of ensuring that DHA does not enjoy net competitive advantages over its competitors because of: (a) the operation of section 63 (exemption from State and Territory taxation); or (b) any other exemption from taxation liability applying to DHA. (4) DHA must pay the amount to the Commonwealth within 4 months after the end of the financial year concerned, unless the Minister determines a period other than 4 months within which the amount, or a specified part of the amount, must be paid. #### 64 Delegation by DHA (1) DHA may, either generally or as otherwise provided by the instrument of delegation, by writing under its seal, delegate all or any of its powers under this Act (other than this power of delegation) to: (a) a committee of the Board; (b) a member of the Board; or (c) a member of the staff of DHA. (2) A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by DHA. (3) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Board. (4) The delegation of a power under subsection (1) does not prevent the exercise of the power by DHA. #### 65 Delegation by Managing Director (1) The Managing Director may, either generally or as otherwise provided by the instrument of delegation, by writing, delegate to a member of the staff of DHA all or any of his or her powers under this Act, other than this power of delegation. (2) A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by the Managing Director. (3) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Managing Director. (4) The delegation of a power under subsection (1) does not prevent the exercise of the power by the Managing Director. #### 66 Delegation by Chief of the Defence Force (1) The Chief of the Defence Force may, by writing, delegate to an officer of the Defence Force all or any of his or her powers under this Act. (2) An officer exercising a power delegated under this section is subject to the directions of the Chief of the Defence Force. #### 66A Delegation by Finance Minister (1) The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under section 37, 38 or 41 to an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of a non‑corporate Commonwealth entity (within the meaning of that Act). (2) In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister. #### 67 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.